Whether the right to open a new grave is included within the scope of the area effective on the right to grave base by combining it with an existing grave in a single way (negative)

The right to grave base refers to the right to use another person’s land to the extent necessary to protect and divate a grave. The right to grave base refers to the right to use another person’s land to the extent that it is necessary for the purpose of attaining the said right, and even within the effective area, it does not include the right to establish a new grave outside the existing grave. As such, one side of the married couple first dies, and the other side of the couple who died after the death of one side is not allowed to open a grave in the form of a subdivision.

Articles 185 and 279 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

[Defendant-Appellant]

Defendant

Seoul District Court Decision 2000Na59066 delivered on April 20, 2001

The part of the judgment of the court below concerning the claim for grave digging is reversed, and that part of the case is remanded to the Panel Division of Seoul District Court. The remaining appeal by the plaintiff is dismissed.

We examine the grounds of appeal.

1. As to the claim for restitution of unjust enrichment

The court below rejected the plaintiff's assertion that the defendant purchased the burial ground part of this case from the non-party 2, who was the owner of the forest of this case at the time of introduction of the non-party 1, around 1967, and installed the grave of this case on the ground of the non-party 3, and then died, the body was buried together with the grave of this case, and maintained the grave ground and occupied the stone of this case. The court below rejected the plaintiff's assertion that the defendant extended the burial ground to the level of November 8, 199 in the process of the combination. In light of the records, the court below's above fact-finding is acceptable, and there is no error in the misapprehension of legal principles as to the binding force of confession or in the violation of the rules of evidence. The ground of appeal on this point is not acceptable.

2. As to the claim for damages

The court below rejected the plaintiff's assertion that the defendant caused damage equivalent to KRW 1 million to the plaintiff by combining the deceased non-party 4's body in the deceased non-party 3's cemetery and cutting or destroying trees while maintaining the tombstone, and then cutting or damaging trees, the court below rejected the plaintiff's assertion that the defendant did not assert or prove any assertion or evidence as to the type, form, quantity, etc. of the damaged trees, and there is no evidence to support that the defendant cut or damaged trees of economic value at the time, and there is no other evidence to support that there was no other damage.

In a case where damage was caused by a tort, even if the allegations and evidences by the parties as to the amount of damage are insufficient, the court shall actively exercise its right of explanation and urge them to prove the amount of damage even if it is possible to ex officio (see, e.g., Supreme Court Decisions 73Da1312, Dec. 24, 1974; 81Da1045, Apr. 13, 1982; 84Da503, 504, Aug. 19, 1986); however, in this case where the lack of proof as to the occurrence of damage, the above determination by the court below is acceptable, and there is no illegality in the incomplete trial. The grounds for appeal on this point are merely criticism against the judgment of the court below from an independent opinion, and it cannot be accepted.

3. As to the claim for grave digging

A. The court below determined to the purport that even if the defendant acquired the right to grave base against the deceased non-party 3's grave site, it cannot be deemed that the deceased non-party 4's body was included in the scope of the right to bury the body of the deceased non-party 4 in the grave site, and that the right to grave base for the deceased non-party 3's body was lost. The scope of the right to grave base is not limited to the grave site directly installed, but also to the vacant land necessary for the protection and the wing of the grave. Thus, it is reasonable to deem that the present grave site of the deceased non-party 3's body was included in the scope of the right to grave base for the deceased non-party 3's grave site for the deceased non-party 4.

B. However, we cannot accept the above determination by the court below for the following reasons.

The right to grave base refers to the right to use another person’s land to the extent necessary to protect and draw up a grave (see Supreme Court Decision 93Da210, Jul. 16, 1993). The right to grave base refers to the right to use another person’s land to the extent that it is necessary to achieve the purpose of protecting and draw up a grave (see Supreme Court Decision 93Da29086, May 23, 1997). Even if the right to grave base is within the area effective, it does not include the right to construct a new grave outside the existing grave. As such, one of the married couple is not allowed to construct a grave by combining the other who died first, to the extent that the grave is already installed and the right to grave base is within the scope that the said right to grave base

According to the facts duly established by the court below and records, the deceased non-party 4's grave was installed in the form of a cross-section by combining it with the deceased non-party 3's grave, and it can be recognized that the defendant newly installed as the deceased non-party 4's death around February 1998, and if the facts are different, even if the deceased non-party 4's grave is located within the same wing area within the area where the deceased non-party 3's right to grave base is situated, it is not allowed to establish such grave.

Nevertheless, the court below rejected the plaintiff's claim against the deceased non-party 4's grave excavation by misunderstanding the legal principles as to the scope of the right to grave base, which affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out has merit.

4. Conclusion

Therefore, the part of the judgment of the court below concerning the claim for grave digging is reversed, and that part of the case is remanded to the court below. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Seo-sung (Presiding Justice)